2115549 (Refugee)

[2022] AATA 834

2115549 (Refugee) [2022] AATA 834 (1 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2115549

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:De-Anne Kelly

DATE:1 March 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 01 March 2022 at 3:57am

CATCHWORDS
REFUGEE – protection visa – Malaysia – application made more than 28 days after notification of delegate’s decision – claim that agent responsible for late application – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31(2)

CASE
DZAFH v Minister for Immigration [2017] FCCA 387

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs on 6 August 2020 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 1 November 2021. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations).

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 6 August 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal wrote to the applicant by email on 4 November 2021 and stated that It appeared their application was not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] – [46].

5. The primary decision was emailed to the applicant on 6 August 2020 meaning that 6 August 2020 was the date on which they are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 2 September 2020. The Tribunal invited he applicant to comment in this information by 18 November 2021.

6. On 25 November 2021 the applicant responded advising that their agent was the reason for their late lodgement of the review application. While the Tribunal acknowledges this information, it is bound to apply the legislation.

7. Tribunal finds that the applicant is taken to have been notified of the decision on 6 August 2020: s 494C of the Act Therefore the prescribed period to apply for review ended on 2 September 2020.

8. The last day of the prescribed period did not fall on a Saturday, Sunday or holiday therefore the applicant did not need until the next day that was not a Saturday a Sunday or a holiday to lodge his or her application i.e., until 3 September 2020: s.36(2) of the Acts Interpretation Act 1901.

9. As the application for review was not received by the Tribunal until 1 November 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

10. The Tribunal does not have jurisdiction in this matter.

    De-Anne Kelly
    Member